And what to do if you’ve been harassed

Margery Wardle, a former heavy equipment operator in Nepean, recently made news with a workplace harassment case. Her claim for “chronic mental stress” was shut down by the Workplace Safety and Insurance Board, despite reporting harassment that included misogynistic comments, physical harassment and intimidation, and even being “swarmed and attacked” while at work. The Board told her this did not qualify as workplace harassment.

But if that isn’t workplace harassment, what is?

Workplace harassment or bullying can rear its ugly head in a variety of ways. And with a workforce that is more diverse than ever before, it is important for employers to be cognizant of harassment at work—and for employees to know their rights.

Workplace harassment can occur both psychologically or personally, but Ontario’s Occupational Health and Safety Act describes it as “engaging in vexatious comments or conduct against a worker that is known or ought to have been known to be unwelcome.” This conduct could occur just once or could be spread over a longer period of time (days, weeks, or months), and could include remarks, jokes, or pictures intended to demean or humiliate a person or group of people. And with the internet such a huge part of our lives these days, it’s important to note that harassment can occur over email or social media as well.

Some examples of harassment or bullying could include:

• A few coworkers go out for drinks one night and one of them reveals something embarrassing from his past. The next day, the rest of the team is laughing at him behind his back and taunting him with an embarrassing nickname.
• A supervisor who is especially religious hears a rumour about one of her employees’ weekend behaviour. She lectures her about it and suggests she move to another department.
• An employee wears a turban to work everyday and keeps some religious photos and knick knacks on his desk. He doesn’t discuss his religion with his coworkers, but they have started bullying him and talking behind his back.

So what defines workplace sexual harassment?

Now, in the #MeToo era, both workers and employers should be aware of policies and procedures designed to protect them both from sexual harassment in the workplace. Sexual harassment can include any type of vexatious comment based upon sexual orientation, gender identity, or gender expression that is known or ought to be known to be unwelcome. It could also include a person in authority making unwanted advances of a sexual nature.

Examples of sexual harassment could include:

• A female worker is at her desk working, when a male superior comes up behind her and starts to massage her shoulders. To him, it’s innocent, but it makes her extremely uncomfortable.
• A male employee is constantly subjected to jokes and ridicule from a group of female employees. They talk about him sexually whenever he walks by the break room. At first he thought it was funny, but it’s gone too far, and he wants it to stop.
• A woman who works primarily with men endures misogynistic comments, but feels she cannot speak up because her superior is a male too.

What are employers’ responsibilities?

It is extremely important for employers to have policies and procedures in place and to act on any type of complaint. This protects both the employer and the employee, and the absence of a program or policy could make it appear as though harassment is not a priority for the employer,  opening them up to potential legal exposure down the line.

Employers are required to:

1. Have a workplace harassment policy (this is required under the Occupational Health and Safety Act);
2. Have a workplace harassment program (this is how complaints are made and investigated);
3. Ensure policy and program are diligently communicated to staff;
4. Ensure proper investigations are conducted; and
5. Inform the complainant and the subject of the investigation the results in writing and any corrective action that was taken.

What should I do if I feel that I have been harassed?

If you have been harassed in the workplace, it’s important to keep a detailed written record of everything and report it to your supervisor or someone you feel comfortable with immediately. If the complainant is a member of a union, some consideration may also be given to approaching the union representative. Should the employer fail to act upon a complaint of workplace harassment then it is recommended that the complainant seek the services of an employment lawyer who specializes in this field.  

What to do if you feel you have been harassed:

1. Report incident(s) to your immediate supervisor, manager, or employer
2. If you are unionized, contact your union rep. If not, you may want to consult an employment lawyer.
3. Maintain a written record of when, where, what was said/done and by whom, names of witnesses

We hope that the Workplace Safety and Insurance Board will update their policies to protect people like Margery. In the meantime, both employers and employees should read up on their rights. To learn more, take a look at Ontario’s Occupational Health and Safety Act or consult an employment lawyer.

Disclaimer:  This blog and website is made available by SKM Forensics for educational purposes only as well as to give the reader some general information and a general understanding of the topics discussed. SKM Forensics is not a law firm nor do we employee lawyers.  By using this blog site you understand that the information provided does not constitute legal advise.  Should you be a victim of a crime we strongly urge you to seek accredited legal counsel and contact your local police service.  Please note that the material in this blog is directed at readers in Canada so if you reside in any other country we would urge you to consult authorities from you local jurisdiction.